The wheels of justice are finally turning for the Rohingya ethnic minority of Myanmar — survivors of the world’s most recent genocide. It has been a whirlwind week for international justice, as multiple pathways to holding the Myanmar military and government accountable have been activated. Myanmar has denied the genocide and related crimes, so we cannot rely on it to hold those responsible for the atrocities to account. It falls on other legal mechanisms — and the states and individuals who feel compelled to bring cases before them — to secure justice for the Rohingya. Amazingly, three of these efforts have launched within the span of one week.
On Monday, November 11, The Gambia, an African nation with an interest demonstrating an interest in human rights, filed suit against Myanmar at the International Court of Justice (ICJ) for violating the Genocide Convention. Then, on Wednesday, November 13, Rohingya activists filed a case for genocide in a court in Buenos Aires, Argentina, under the principle of universal jurisdiction. Finally, on Thursday, November 14, judges at the International Criminal Court (ICC), based in The Hague, Netherlands, gave the chief prosecutor, Fatou Bensouda, the green light to move forward with her investigation into the atrocities perpetrated against the Rohingya.
These various efforts at countering impunity in the face of genocide and crimes against humanity need the support of the international community. The momentum of this monumental week cannot be squandered. Each channel must be maximized to send a message that genocidal acts will not be tolerated and the free world will not stand idly by in the face of such atrocities.
These are efforts to right a wrong that came to a head, after decades of discrimination, in August 2017 when the Myanmar military unleashed a deadly purge against the Rohingya Muslim minority living in Rakhine state, forcing close to 800,000 to flee a brutal clearance operation of massacres, mass rape, pillage, and arson. Today, nearly a million Rohingya languish in squalid, fetid camps in neighboring Bangladesh, where their purgatorial existence continues to be threatened by increasingly restrictive conditions and the spectre of forced returns. The hundreds of thousands of Rohingya remaining in Myanmar live in apartheid-like conditions, stripped of all their rights, and perpetually at risk of future genocidal acts by an unapologetic regime that has continued to perpetrate atrocities with total impunity. Until now.
The ICJ Case
On November 11, The Gambia opened a case against Myanmar at the International Court of Justice (ICJ) on behalf of the Organization of Islamic Cooperation (OIC). The United Nations established the ICJ in 1945 to resolve legal disputes between nations, which may apply to the ICJ to intervene when a nation has a legal interest in the case or when the case concerns the interpretation of a convention to which it is a party.
Nations that are party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide can bring a dispute before the ICJ alleging another member’s breach of the Convention and seek provisional measures to stop continuing violations. Myanmar became a party to the Genocide Convention in 1956 and is, thereby, legally bound “to prevent and to punish” genocide and, by extension, has an obligation not to commit it. Genocide, by definition, is the systematic and widespread effort to erase a national, ethnic, religious, or racial group, either in whole or in part, simply because of who the group’s members are. It can manifest through various different acts of violence–ranging from mass murder to rape to forced transfers–but what distinguishes genocide from other heinous crimes is the specific intent to wipe the human slate clean of the population simply because of their membership in the targeted group.
The Organization for Islamic Cooperation (OIC) encouraged its 57 members to bring Myanmar before the court to help the persecuted Rohingya Muslim minority–a call to action that The Gambia boldly took up. As a majority Muslim nation, invested in promoting itself as a human rights defender as it recovers from its own dictatorial past, The Gambia, led by its Minister for Justice, Abubacarr Tambadou, a former prosecutor of the Rwandan genocide, accepted the challenge.
The Gambia’s legal action catalyzes a judicial process before the world’s highest court that could result in a determination that Myanmar’s atrocities against the Rohingya violate the Genocide Convention. After such a finding, the Court’s prompt adoption of provisional measures could help stop the worst ongoing abuses against the Rohingya in Myanmar. In addition to holding the power to award reparations, the Court can recognize, on a global scale, the collective harm suffered by the entire Rohingya community affected by these atrocities.
The Gambia’s 46-page submission leans heavily on reports by the UN fact-finding mission and other assessments that have underscored the presence of genocidal intent behind the campaign against the Rohingya. The complaint alleges that all members of the Rohingya group in Myanmar are presently in grave danger of further genocidal acts because of Myanmar’s deliberate and intentional efforts to annihilate them as a group. Because of this very real and mounting threat to the Rohingya population still living inside Myanmar, The Gambia also requested in its filing that the ICJ issue an urgent temporary injunction ordering Myanmar to halt all actions that could aggravate or expand the existing situation, namely, the continued use of extrajudicial killings, rape, hate speech, and the bulldozing of the homes where the Rohingya once living in Rakhine State.
Canada, Bangladesh, Nigeria, Turkey, France, and Malaysia have also asserted Myanmar committed genocide against the Rohingya, but The Gambia’s move marks the most robust action to date by a government to hold to account the Tatmadaw — the Myanmar military and security apparatus chiefly responsible for the atrocities. In aggregate, these other nations, as well as the 57 OIC member states, form a robust group that can work to prop up and support The Gambia’s monumental move, and it is imperative that they do so.
UN member states that are signatories to the Genocide Convention can submit interventions to the ICJ, providing interpetations of the Genocide Convention as it pertains to the Rohingya crisis. These same states, as well as non-signatories, can endorse the case through diplomatic statements, provide financial support to The Gambia, or offer technical assistance in such things as evidence gathering. The United States also is a party to the Genocide Convention, having ratified it in 1988. Yet, to date, Washington has not designated the Rohingya situation as a genocide. It is nevertheless of crucial importance the United States support this important counter-impunity effort through statements, technical and financial assistance, and a submission to the Court.
The Gambia has taken the lead, and the international community must follow and put the full force of its resources behind this case to show the Rohingya, all rights-effacing regimes, and other persecuted minorities that the world will not stand idly by in the face of such depravity.
Abubacarr M. Tambadou, The Gambian Attorney General and Minister of Justice who spearheaded this case, spent more than a decade prosecuting genocide at the International Criminal Tribunal for Rwanda. He told the New York Times, “The world failed Rwanda when the international community did not prevent the genocide while it was unfolding. The treatment of the Rohingya is illustrative of the international community’s failure to prevent genocide in Myanmar. I thought this was not right. The world cannot stand by and do nothing.”
The Argentina Case
On the heels of the landmark filing by The Gambia, on November 13, rights groups, including the Burmese Rohingya Organisation UK (BROUK), filed a case in federal court in Argentina against members of the Myanmar military and, notably, civilian leader and disgraced Nobel Peace Prize Laureate Aung San Suu Kyi. The lawsuit alleges that Suu Kyi and her government contributed to the genocidal crackdown that began in August 2017 and oversaw government policies “tending towards the annihilation of the Rohingya,” such as confining them in “ghettos” with severely limited access to healthcare, education, and other basic rights.
This case is being brought in Argentina for two major reasons. First, heavyweight Argentine human rights lawyer Tomas Ojea Quintana, who is representing BROUK, was once the UN Special Rapporteur on human rights in Myanmar and has a unique perspective and stake in the outcome of the litigation. And, second, Argentina enshrines the legal concept of “universal jurisdiction” in its laws. This is the premise that some acts — including war crimes, crimes against humanity, and genocide — are so horrific that they can be tried anywhere, regardless of where the crimes were committed or who they involved.
While the Tatmadaw’s role in the genocide and crimes against humanity have been well-documented by multiple organizations and UN entities, this marks the first time Suu Kyi is being called out for the civilian government’s complicity in the atrocities. “On the one hand, you have the horrendous crimes committed by the military on the ground, which include murder, gang rape, torture, and so on,” said Tomas Ojea Quintana. “But on the other hand, you have a large list of policies…that are the responsibility of the civilian authority.” The complaint alleges that “the entire genocidal plan…could not have been deployed without the complementation, the coordination, the support or the acquiescence of the different civilian authorities.” This turns on its head the narrative that Suu Kyi was hamstrung from taking a stand against the Tatmadaw because of the relative powerlessness of the civilian government in Myanmar. Let’s hope that the Argentine example triggers more prosecutions of this nature, targeting the entire breadth of those responsible for what the Rohingya have been forced to suffer for far too long.
ICC Case
Finally, on November 14, the Pre-Trial Chamber III of the International Criminal Court (ICJ) authorized the Prosecutor, Fatou Bensouda, to proceed with an investigation for the alleged crimes within the ICC’s jurisdiction committed against Myanmar’s Rohingya population. While the ICJ case, discussed above, deals with the actions of nations, ICC prosecutions focus on individual criminal responsibility. In other words, the ICC goes after the architects of the genocide and holds them to account. In this case, this encompasses those in the upper echelons of power in the Myanmar military, known as the Tatmadaw, and potentially other governmental figures.
The Pre-Trial Chamber’s decision to green-light the investigation was bolstered by the participation of many Rohingya victims, who together expressed to the Court that justice and accountability are the only pathways to preventing future violations of the Rohingya people’s rights and dignity.
While this decision is welcomed by rights activists and Rohingya worldwide, the ICC is limited in terms of which of the military’s crimes it can prosecute. The Chamber made clear that the Court may exercise jurisdiction only over those crimes where part of the criminal conduct took place on the territory of a State Party — in this case, Bangladesh. So, crimes against humanity, like forced deportation, which concluded in Bangladesh, are prosecutable, while genocide that occurred within the territory of Myanmar, which is not a state party to the ICC, are not. Ultimately, the Chamber found that there is a “reasonable basis to believe widespread and/or systematic acts of violence may have been committed that could qualify as the crimes against humanity of deportation across the Myanmar-Bangladesh border and persecution on grounds of ethnicity and/or religion against the Rohingya population.”
Given the limitations of the ICC’s investigation, which at this point is tethered to activity occurring, at least in part, in Bangladesh, it remains essential that the UN Security Council refer the situation in the whole of the country to the ICC. Only a UN Security Council referral will guarantee that the full panoply of violations, including genocide — the crime of crimes — will be investigated and prosecuted. Thus far, international efforts to trigger an ICC probe into the bloodshed via a resolution of the UN Security Council have been stymied by the opposition of Russia and China, both allies of Myanmar. The UN has responded to that obstruction by creating an Independent Investigative Mechanism for Myanmar, mandated to collect evidence of the most serious international crimes in preparation for prosecution by state, tribunal, or international courts. But the mechanism’s ambiguous operations and the lack of a clear endpoint or forum in which this evidence will be utilized has arguably helped to bolster the Myanmar government’s seemingly indefatigable denial narrative. The United States, as well as other permanent member states of the U.N. Security Council, have a duty to keep pressing for a full-fledged ICC referral, so that the Prosecutor can address the full extent of the atrocities perpetrated against the Rohingya and hold those responsible to account.
These three justice efforts, amplified because of their roll-out in such quick succession, send a strong message to the orchestrators of atrocities against the Rohingya that their days of impunity are numbered. These efforts also have given hope to the Rohingya — those in the camps, still in Myanmar, and even in the diaspora community scattered around the world — that Myanmar will be forced to reverse its course of violence and live up to its obligations under the Genocide Convention to punish those responsible.
The international community cannot let that hope be extinguished.